ALJDEC decisions subject to certification as final

2022A-01888-CHC-ROC · Registrar of Contractors · 2022-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brian James Melton,

COMPLAINANT

SunUp America LLC,

License No. ROC 333266,

RESPONDENT

No. 2022A-01888-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 12, 2022.

APPEARANCES: Complainant Brian James Melton appeared via Google Meet on his own behalf. Respondent was represented by Paul Gugel, Esq. and appeared via Google Meet. Registrar of Contractors Investigator Steve Nelson appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

SunUp America LLC (Respondent) is the holder of License No. 333266 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 27, 2021, Brian James Melton (Complainant) signed a contract with Respondent for installation of solar panels and the associated electrical work. The contract amount was for $25,300.00.

On or about February 28, 2022, the Registrar received a Complaint containing nine items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Bob Mcquien. The jobsite inspection was performed on April 19, 2022.

Investigator McQuien then issued a written directive on or about April 20, 2022, to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on May 23, 2022.

. . .

You are hereby directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Upgrading wire not completed.

Investigator’s Observation: Wiring not complete. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item: 2 - 200 amp panel box was not installed as agreed.

Investigator’s Observation: Work not complete. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item: 3 - Wrong amp electric box was put in, wiring not done.

Investigator’s Observation: Work not complete. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item: 4 - Cut a large portion of my new concrete.

Investigator’s Observation: Concrete cut out but not replaced. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item: 5 - Did not change the sweep.

Investigator’s Observation: Wire was not upsized so sweep was not upsized. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Compliance Item: 6 - Put exposed wiring around house into the ground.

Investigator’s Observation: Ground wires installed improperly. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 7 - Copper wiring coming up out of the ground.

Investigator’s Observation: Ground wires installed improperly. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 8 - Copper wiring exposed around outside of house.

Investigator’s Observation: Ground wires installed improperly. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 9 - Solar Panels were not able to be put up.

Investigator’s Observation: : Work halted. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

(All errors contained in the original).

A Compliance Jobsite Inspection was conducted on June 8, 2021. In his notes regarding the same, Investigator McQuien found:

Compliance Findings: Respondent repaired concrete cut out by distribution panel and removed ground wires spread out across back yard. All work has stopped; Respondent admitted Salesman made statements he should have.

(All errors contained in the original).

On June 13, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

On or about June 27, 2022, Respondent e-mailed an Answer to the Registrar.

On or about July 13, 2022, a Notice of Hearing was issued setting a hearing on August 18, 2022 at the Office of Administrative Hearings, an independent state agency.

After a continuance, the hearing was held on October 12, 2022.

At hearing, Investigator Steve Nelson testified as to the Registrar’s involvement and the above timeline.

Investigator Nelson testified that there was no representative from Respondent at the initial jobsite inspection.

In addition, Investigator Nelson testified that the main crux of the dispute was a 200 amp panel box with a 100 amp breaker box. Investigator Nelson testified that while the written contract did not specify a 200 amp panel be installed, however, the drawings for the permit demonstrated a 200 amp panel.

Investigator Nelson also testified that per the requirements of the Written Directive, Respondent removed all of the ground wires which were spread out across the backyard, and Respondent had repaired the concrete cutout by the distribution panel.

Further Investigator Nelson testified that it was not uncommon, although not ideal, for there to be oral change orders to a project.

Complainant testified on his own behalf. He testified that although the 200 amp breaker box was not written in the contract, he was relying on the oral representations made by Respondent’s sales representative that the same would be used on his project. Complainant testified that he was lied to throughout the whole project.

Complainant testified that Respondent cut out his new concrete to change the sweeps and upgrade the wiring. Complainant also testified that he was not satisfied with the concrete repair as there is a crack in the patio and the lines did not match up.

Complainant also testified that the workers would try to push forward with the installation of the actual solar panels, before installing the 200 amp panel box.

Complainant testified further that he spoke with at least one other of Respondent’s employees, who stated that the 200 amp panel box would be installed.

Fred Ritchie and Benjamin Taylor testified on behalf of Respondent.

Mr. Ritche was Respondent’s head of operations. He testified generally that he requires all terms must be in writing, including any change orders. He also testified that the system Mr. Melton purchased did not require anything greater than a 100 amp breaker.

Further, Mr. Ritchie testified that as to the Written Directive, he instructed his workers to correct everything that was a part of the contract only (concrete, and remove the ground wires).

Mr. Ritchie also testified that they provided a 200 amp panel box, and that any disconnect could be placed within the same. Further, Respondent replaced the original 100 amp breaker box with a new one. In addition, Mr. Ritchie testified that to use 200 amp wires would require excavation from Complainant’s house, through neighbor’s yards, to the transformer through the neighbor’s yards and then the utility company would have to run the wires.

As to the permit, Mr. Ritchie testified that the drawings did not indicate any change to the transformer to increase the amperage. All of this, Mr. Ritchie testified, would have been very costly, and would not save Mr. Melton any money. The permit was for a 200 amp panel box and passed all inspections.

Mr. Ritchie also testified that he never promised Mr. Melton a 200 amp breaker box, and he had audio recordings to prove the same.

Finally, Mr. Ritchie testified that Respondent had spent over $10,000.00 on the job and has not collected any money from Complainant.

Mr. Taylor testified he had several telephone conversations with Mr. Melton and he did not promise anything to Mr. Melton, and that he was not allowed to make any verbal resolutions to a customer.

Administrative notice is taken of Respondent’s prior License record on October 27, 2022. Such prior License record reflects that Respondent’s License No. 333266 was first issued on May 6, 2021, and reflects that there is 1 open complaint, namely the present complaint.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards as to Directive items 6, 7, and 8. Mr. Ritchie likewise did not dispute the exposed wiring including copper wiring coming up from the ground, and being exposed around the outside of the house. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The preponderance of the evidence also established that the ground wires were removed and/or buried and that Respondent has repaired the concrete cut out by the distribution panel. Therefore, there was no violation of A.R.S. § 32-1154(A)(22) as to Directive items 6, 7, and 8.

As to the other Directive requirements, the preponderance of the evidence established that Respondent was in violation of A.R.S. § 32-1154(A)(1). While there was nothing in the written contract as to the upgraded breaker box and upgrade wires, there was evidence that the upgrades were discussed by Respondent’s salesman and Complainant. Respondent’s representative even acknowledged the same during the Compliance Jobsite Inspection on June 8, 2022. Therefore, Respondent abandoned this part of the job.

As to the actual installation of the solar panels, the evidence demonstrated that Complainant would not allow installation of the same without the upgraded breaker box and wires. However, Mr. Ritchie’s testimony was more persuasive that based upon the wiring completed and the installation of the 100 amp breaker box, the solar panels would have been functional. Because of Complainant’s refusal to allow installation of the solar panels, there was a legal excuse for abandonment, and the tribunal finds no violation for failure to install the solar panels.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 333266 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $200.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 30 days from the date of that certification.

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-137160-45720000Done this day, October 27, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

SunUp America LLC

[email redacted]

Brian James Melton

[email redacted]

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-137160-45720000By Miranda Alvarez

Legal Secretary